SUPPLEMENT - Kenya Law Reports€¦ · The Bomet County Alcoholic Beverage Control and Manogement Act, 2014 I THE BOMET COUNTYALCOHOLIC BEVERAGE CONTROL AND MANAGEMENT A CT, 2OI4

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SPECIAL ISSUE

Bomet County Gazette Supplement No. 5 (Acts No. 1)

REPT'BLIC OF KENYA

BOMET COUNTY GAZETTESUPPLEMENT

ACTS, 2014

NAIROBI, 23rd April 2014

PAGE

The Bomet County Alcoholic Beverage Control and Management

A.ct,20l4.... ..................1

PI,JBLISHED BYTHEAUTHORITY OF THE COI'NTY GOVERNMENT OF BOMET

The Bomet County Alcoholic Beverage Control and Manogement Act, 2014 I

THE BOMET COUNTYALCOHOLIC BEVERAGE CONTROLAND MANAGEMENT A CT, 2OI4

ARRANGEMENT OF SECTIONS

Sections

PART I-PRELIMINARYl-Short title and commencement.

2-lnterpretation.

3-Object and purpose ofAct.

PART II-ADMINISTRATION

4-Establishment of the Agency.

S-Functions of the Agency.

6-Composition of the Agency.

7-Rehabilitation facilities and programs.

8-Establishment of the Fund.

9-Administration of the Fund.

PART III-LICENSINGI 0-Control of alcoholic beverage.

I l-Establishment of the Sub-county committee.

l2-Appeals Board.

t 3-Application for licence.

l4-Grant of a licence.

I 5-Provisional licence.

I6-Licence for premises.

I7-Persons not eligible for a licence.

The Bomet Comty Alcoholic Beverage Control and Management Act, 2014

l8-Validity and renewal of licences.

l9-Review.

20-Right of review.

2l-Appeal to Court.

22-Licercn to body corporate.

23-Types oflicence.

24-Transfer of licence.

25-Removal of licence.

26-Display of licence.

27-Employment for sale of alcoholic beverage.

2t-Drunken behaviour.

29-Debt from sale of alcoholic beverage.

30-Access by persons underthe age oftwenty one years.

3l-Reports by public health officers and police officers.

32-Cancellmion of licence.

PART IV-GEI\ERAL REQTIIREMENTS

3Honformity with requirements.

32l-Supply to young persons.

35-Display of sig.*.

36-Vending machines.

37-Selling in sachets.

PART V-SALE AI\TD CONSUMPTION38-Sale to intoxicafed person.

39-Disorderly conduct.

40-Breach oflicence.

4l-Sale to authorized ofrcer.

42-Non disclosure of conviction.

43-Sale without licence.

44-Sale of adulterated alcoholic beverage.

45-Proofofsale.

u,FIFUl<oLIFE2lr'colFUEElo

t'

The Bomet County Alcoholic Beverage Control and Management Act, 2014 3

46-Burden ofProof.

47-Endorsement of conviction on licence.

48-Forfeiture of licence upon conviction.

PART VI-ADVERTISEMENT AND PROMOTION49-Prohibition of advertisement and promotion.

S0-Promotion at underage events.

5 I -Encouraging consumption.

PART YII-ENFORCEMENT52-Authorised officers.

53-Places authorized officers may enter.

54-Powers of officers.

55-Use of records.

56-Entry of dwelling place.

57-Court to issue warrant.

58-Use of force.

5 9-Certifi cate of analysis.

60-Assistance of offi cers.

6l-Obstruction.

62-Seizure.

63-Order for restoration.

64-General penalty.

65-Nature of offences.

66-Nature of evidence in proceedings.

PART VIII-MISCELLANEOUS67-Forfeiture of equipment

68-Regulations.

69-Transitional provisions.

FIRST SCHEDULE-Types of Licences (s.18)

SECOND SCHEDULE-Licence hours (s.22)

TIIIRD SCHEDULE-Exemptions (s. 10)

The Bona Courty Alcoholic Beverage Control and Management Act, 2014

THE BOMET COUNTYALCOHOLIC BEYERAGECONIROL AND MANAGEMENT ACT, 2OI4

Date ofAssent: I9h March, 2014

Dae of Commencement: 19h March, 2014

ShorttitbadGmcaffi-

hE:ryEtdim.

AIYACT of the CountyAssembly to provide for theregulation of the pmduction, sale and consumptionofalcoholic beverage and connected purposes

ENACTED by the County Assembly of Bomet as

follows-

1- This Act may be cited as the Bomet AlcoholicBeverage Control and ManagementAct 2014 and shallcome into operation upon assent.

2. In this Act unless the context otherwiserequires-

"alcohol" means the product known as ethylalcohol or any product obtained by fermentation ordistillation ofany fermented alcoholic product rectifiedeitheronce ormore often, whateverthe origin, and shallinclude synthetic ethyl alcohol, but shall not includemethyl alcohol and alcohol completely denatured inaccordance with the prescribed formulas ;

"alcoholic beverage" includes alcohol, spirit, wine,beer, liquor, traditional alcoholic beverage, and anyone or more of such varieties containing one-half ofone percent or more of alcohol by volume, includingmixed alcoholic beverage, modified industrial alcoholblended for human consumption and every liquid orsolid, patented or not, containing alcohol and capableof being consumed by a human being;

"authorised officef'means an authorised officer withinthe meaning of section 52;

The Bomet CountyAlcoholic Beverage Control and ManagementAct, 2014 5

"authority" means The National Authority for theCampaign Against Alcohol and Drug Abuse established

No. 4/2010 under the Alcohol Drink Control Act, 2010.

"agency" means the Bomet County Alcoholic BeverageControl Agency established under section 4.

"appeals board" means the County Alcoholic BeverageAppeals Board established under section 12;

"board" means the Board of the Agency constitutedpursuant to section 6;

'cinema'has the meaning assigned to it in the Filmscap222 and Stage Plays Act;

"conveyance" means a conveyance of any descriptionused for the carriage ofpersons or goods and includesany aircraft, vehicle, cycle or vessel;

"entity" includes a company, corporation, firm,parbrership, association, society, trust or otherorganisation, whether incorporated or not;

"Enforcement Committee" means the CountyAlcoholic Beverage Control Enforcement CoordinatrngCommittee established under section 52;

"Executive Member" means fhe executive memberresponsible for alcoholic beverage control;

"Fund" means the Alcoholic Beverage Contol Frmdestablished by section 7;

"health institution" means a hospital, nursing home,convalescent home, matemity home, health c€ntre,dispensary or other institution where health or othermedical services are rendered free of charge or uponpayment of a fee;

"hotel" means any place where the public may, forconsideration, obtain sleeping accommodation, with orwithout meals;

The Bomet CounlyAlcoholic Beverage Control and Management Act, 2014

"illicit trade" means any practice or conduct prohibitedby law and which relates to production, shipment,receipt, possession, distribution, sale or purchase

of alcohol or its products, including any practice orconduct intended to facilitate such activity;

"licensee" means a person who holds a licence grantedunder this Act;

"locality" unless where context otherwise provides tothe contrary, means an urban area, sub-county or wardas the case may be;

"manager" in relation to -(a) a cinema or theatre, includes an assistant

manager, a person holding an officeanalogous to that of a manager or assistantmanager of the cinema or theatre or anyperson in charge or in control of the cinemaor theatre:

(b) a health institution, includes the owner or aperson in charge or in control of the healthinstitution;

(c) a specified building, includes the owner,occupier, lessee or the person in charge or incontrol of the specified building;

'?nanufacture" means the brewing, distilling, tapprngor :ury processing or intermediate processing ofan alcoholic beverage and includes the packaging,labelling, distribution or importation of an alcoholicbeverage for sale in the county;

"manufacturer", in respect of an alcoholic beverage,includes any entity that is involved in its manufacture,including an entity that controls or is controlled by themanufacturer, or that is controlled by the same entitythat controls the manufacturer;

The Bomet County Alcoholic Beverage Control and Management Act, 2014

Object and purpose

of Act.

'lackage" means the container, receptacle or wrapperin which an alcoholic beverage is sold or distributedand includes the carton in which multiple packages are

stored;

"public place" means and includes any place, buildingor convenience to which the public has, or is permifiedto have access, and any highway, street, lane, park orplace of public resort or amusement;

"residence "means any building, part of a building ortent, where a person resides including lands adjacentthereto that are essential or appropriate for the privateuse, occupation and enjoyment thereof;

"retailer" means a person who is engaged in a businessthat includes the sale of any alcoholic beverage toconsumers;

"sell" includes-

(a) barter or exchange without use of money;

(b) offer or expose for sale, barter or exchangewithout use of money;

(c) supply, or offer to supply, in circumstances inwhich the supplier derives or would derive, adirect or indirect pecuniary benefit;

(d) supply or offer to supply, gratuitously but witha view of gaining or maintairung custom, orotherwise with a view for commercial gain;

"sub county committee" means the Sub-countyAlcoholic Beverage Control Committee appointedunder section ll;

3. The object and purpose of this Act is to providefor licensing of alcoholic beverage so as to controlthe production, sale, distribution, promotion and use

of alcoholic beverage and the promotion of research,treafinent and rehabilitation for persons dependent onalcoholic beverage in order to-


protectthe health ofthe individual in the lightof the dangers of excessive consumption ofalcoholic beverage,

protect persons under the age of eighteenyearc from negative impact on healthand social development from exposure toadvertisements of alcoholic beverage.

protect consumers of alcoholic beveragefrom misleading or deceptive inducementsand inform them of the risks of excessiveconsumption of alcoholic beverage:

protect the health ofpersons underthe age oftwenty one years by preventing their access

to alcoholic beverage;

inform and educate the residents in thecounty on the health, economic and socialconsequences ofthe consumption of alcoholicbeverage:

adopt and implement effective measures toeliminate illicit trade in alcohol includingsmuggling, hawking, illicit manufacturingand counterfeiting.

ensure fair and ethical business practicesrelated to production, distribution, promotionand sale of alcoholic beverage:

reduce and mitigate the negative health,social and economic impact on communitiesresulting from production, sale andconsumptions of alcoholic beverage.

PART II - ADMINISTRATION

4. (l) There is established an agencytobeknownas Bomet County Alcoholic Beverage Control Agency.

(2) The Agency shall be a body corporate withperpetual succession and a common seal and shall, inits corporate narne, be capable of -

(a)

(b)

(c)

(d)

(e)

(0

(e)

(h)

Establishment ofthe Agency.

The Bomet CountyAlcoholic Beverage Contral and ManagementAct, 2014 9

Functions ofthe

Agency.

(a) suing and being sued;

(b) taking, purchasing or otherwise acquiring,holding, charging ordisposing of movableand immovable property;

(c) borrowing and lending money; and

(d) doing or performing all other things or actsfor the furtherance of the provisions ofthe Act which may be lawfully done orperformed by a body corporate.

5. The Agency shall-

(a) coordinate enforcement of the Act;

(b) monitor and evaluate the enforcementprocess and system under the Act.

advise the Govemor on the necessary

measures to be adopted ln ensuringeffective enforcement and compliancewith the Act;

keep statistics on the level of alcoholicbeverage consumption and related deaths

and carry out research, documentation anddissemination of all relevant informationon alcoholic beverage;

promote county treatnent and rehabilitationprogrammes;

advise the Member of the ExecutiveCommiuee on the county policy to beadopted with regard to the production,manufacture, sale, transport andconsumption of alcoholic beverage;

(c)

(d)

(e)

(0

10 The Bomet CounlyAlcoholic Beverage Control andManagementAct, 2014

(e) advise the Member of the ExecutiveCommittee generally on the exercise ofhis powers and the performance of hisfunctions under this Act, and in particularto-(i) recommend to the Member of the

Executive Committee the permissiblelevels of the constituents of alcoholicbeverage required to be prescribedunder section 68(2)(a);

(ii) advise the Member of the ExecutiveCommittee on the harmfu I constituentsand ingredients of alcoholic beveragerequired to be prohibited undersection 68(2Xb);

(iii) advise the Member of the ExecutiveCommittee on the test methods tobe used in determining alcoholicbeverage in order to test conformitywith the requirements of this Act andany regulations made thereunder,

(iv) advise the Member of the ExecutiveCommittee on the information thatmanufacturers shall provide, includinginformation on product composition,ingredients, hazardous propertiesand brand elements required to be

provided under section 68(2)(c);

(v) advise the Member of the ExecutiveCommittee on the packaging, sale anddistribution of alcoholic beverage ;

recommend to the Member of theExecutive Committee and to participatein the formulation of the regulations to bemade under section 68;

(h)

The Bomet CountyAlcoholic Beverage Control andManagementAct, 2014 11

in collaboration with other relevant countydeparftnents, prepare and submit an alcoholicbeverages status report bi-annually inthe prescribed manner to the ExecutiveCommittee which shall be submitted tothe County Executive Committee, CountyAssembly and the Authority manage the fundestablished under section 8; and

carry out such other roles necessary for theimplementation of the objects and purpose ofthis Act and perform such other functions as

may, from time to time, be assigned by theMember of the Executive Committee.

6. The management of the Agency shall vest in aboard which shall consist of-

(a) a chairperson appointed by the Governorthrough a competitive process and withthe approval of the County Assembly;

(b) the chief officer in the deparftnent forthe time being responsible for alcoholicbeverage control in the county;

(c) the chief officer in the deparhnent for thetime being responsible for finance;

(c) the officer responsible for coordinationof national govemment functions in thecounty;

(d) the officer responsible for administrationin the county;

(e) the County Public Health Officer;

(0 two officers nominated by the CountyPolicing Authority and appointed by theExecutive Committee Member;

(g) one officer appointed by Kenya Bureau ofStandards;

(i)

o

Composition of the

Agency.

12 The Bomet CountyAlcoholic Beverage Control andManagementAct, 2014

Rehabilitation

facilities and

prograns.

Establishment ofthe Fund.

(h) one omcer appointcd by Anti-CounterfeitAgency;

(D two persons, awoman and aman, appointedby the Executive Committee Memberthrough a competitive process to represent

the youth; and

0) the Director, who shall be the secretary;

7. The Agency shall -

(a) in collaboration with otler relevantcounty and national govemmentagencies establish treatnent andrehabilitation facilities and programsfor persons dependent on alcoholicbeverage in the county;

O) ensure that the treatnent andrehabilitation facilities have thenecessary human resources foreffective operation and servicedelivery;

(c) ensure that the treatrnent andrehabilitation services are designedin a manner that is accessible and

afEordable to persons dependent onalcoholic beverages.

8. (l) There is established a frrnd to be known as

the Alcoholic Beverage Control Fund.

(2) The Fund shall consist of-

(a) such monies as may be appropriated by thecounty assembly;

(b) such licence and other fees as may bepayable under this Act;

The Bomet CountyAlcoholic Beveroge Contrcl and ManogementAct, 2014 13

Administration ofthe Fund.

(c) such sums as may be realized from propertyforfeited to the county govemment underthis Act;

(d) sums received, including contributions, gifuor grants from or by way of testamentarybequest by any person,

(e) moneys eamed or arising from anyinvestnent of the Fund;

(f) all other sums which may in any mannerbecome payable to, or vested in, the Fund.

(3) Where, in terms of subsection (2) (b), anyimmovable property is assigned to the Fund, the Boardshall deal with the property in such manner as it thinksfit and may sell the property and use the proceeds ofsale for the pwposes for which the Fund is established.

(a) The Fund shall be used formeeting the capitaland recurrent expenditure relating to-

(a) carrying out the functions of the Agencystipulated under section 4;

O) assisting in the operations of the Sub-county Committees;

(c) any other matter incidental to the mattersstated in paragraphs (a) and (b).

(5) The receipts, eamings or accruals ofthe Fundand its balances at the close of each financial year shallnot be paid into the County Revenue Fund, but shall beretained for the purposes of the Fund.

9. (l) The Fund shall be administered by theBoard,

14 The Bomet CountyAlcoholic Beveroge Control and ManagementAct, 2014

Control ofalcoholic beverage

(2) The Board may, with the approval of theExecutive Member responsible for finance, invest orplace on a deposit account any of the moneys of theFund and any interest earned on moneys so invested ordeposited shall be placed to the credit of the Fund.

(3) The Director shall-

(a) supervise and control the administration ofthe Fund;

(b) impose conditions on the use of anyexpenditure personally authorized and mayimpose any restriction or other requirementconceming use of expenditure;

(c) cause to be kept proper books ofaccountand other books and records in relationto the Fund as well as to all the variousactivities and undertakings of the Fund,

(d) prepare, sign and transmit through theexecutive member to the Auditor-Generalin respect of each financial year and withinthree (3) months after the end thereof, astatement of accounts relating to the Fundin accordance with the Public FinanceManagement Act and in such details as

the county treasury may from time to timedirect;

(e) furnish such additional information as maybe required for examination and audit bythe Auditor-General or under any law; and

(f) designate such staffas may be necessary toassist in the management of the Fund.

PART III - LICENSING

10. (l) Aperson shall not-(a) manufacture or otherwise produce;

The Bomet CountyAlcoholic Beverage Conbol and ManagementAct, 2014 15

Establishment ofthe sub-couuty

committee.

No. l7/2O12

No. l3l2011

O) sell, distribute or dispose of, or dealwith;

any alcoholic beverage in the Countyexcept under and in accordance with alicence or an exemption issued underthis Act.

(2) A person who contravenes the provisionsof subsection (l) commits an offence and shall, onconviction, be liable to a fine not exceeding fivehundred thousand shillings or imprisonment for a termof three years or both.

(3) Subsection (1) shall not apply to persons orbusinesses listed in the Third Schedule.

(4) The Executive Committee Member in chargemay provide or amend the list of persons or businessesin the Third Schedule as and when the need arise.

11. (1) There is established, for every sub-county,a committee to be known as the Sub-county AlcoholicBeverage Control Committee which shall-

(a) issue licenses in accordance with thisAct; and

O) perform such other functions as may,from time to time be assigned to it by theExecutive Committee Member.

(2) The Committee may, in the discharge of itsfunctions under this Act, inspect or makevisits to premises at such times as it maydeem appropriate.

(3) In carrying out its functions, the Sub-countyCommittee shall -

(a) ensure that there is effective publicparticipation in accordance with thefrarnework for citizen participationestablished under the CountyGovemments Act the Urban Areas andCities Act, or any other relevant writtenlaw;

16 The Bomet CountyAlcoholic Beverage Control and Management Act, 2014

No. l7/2O12

(b) collaborate with ward adminishatorsand village administrators andcouncils appointed under the CountyGovenrments Act, and the officersin charge of coordination of nationalgovemment functions in the wards andvillages;

(c) collaborate with similar committeesin other counties for effectiveimplementation of the Act.

(4) The committee shall consist of-(a) Sub-county administrator who shall be

the chairperson;

(b) the sub-county public health officer;

(c) the officer commanding Kenya PoliceServices in the sub-county;

(d) the officer commanding AdministrationPolice in the sub-county;

(e) one officer designated by the Agency whoshall be the secretary and an ex officiomember;

(0 the officer responsible for coordinationof national govemment functions in thesub-county,

(g) the officer for the trme being responsiblefor physical planning in the sub-county;

(h) the officer of the national government forthe time being responsible for educationin the sub-county

(i) three residents ofthe sub-county appointedby the Executive Member through acompetitive process in accordance withthe prescribed rules, one of whom shallbe a youth provided that not more thantwo persons shall be of the same gender.

The Bomet County Alcoholic Beverage Contrcl and Management Act, 2014 l7

Appeals Board.

(5) The committee may invite such other person

whenever it is necessary for the efficient discharge ofits mandate.

(6) Amember ofthe committee may be represented

at the meetings by an officer who is only one rankbelow.

(7) A person shall not be a member of theCommittee if such person is-

(a) the holder of or a licence in the countyunder this Act;

(b) apartrer in afirm or director or shareholderof a company or other body which is theholder of a licence in that county underthis Act;

(c) directly or indirectly employed as an

agent of a person, firm or companywhich is the holder of a licence in the

county under this Act;

(d) undischargedbankrupt;

(e) a person who has been convicted ofanoffence under this Act or of a felony.

(8) The conduct of business and affairs ofthe sub-

county committee shall be in such manner as may beprescribed.

(9) The Agency shall provide secretariat servicesfor the Commitiees.

12. (1) There is established the County AlcoholicBeverage Appeals Board.

(2) The Appeals Board shall consist of -(a) the chairperson appointed by the Govemor

on the recommendation of the PublicService Board;

(b) County Solicitor;

18 The Bomet CountyAlcoholic Beverage Control and ManagementAct, 2014

Application for a

licence.

(c) three residents of the county who arenot public or state officers appointedby the Executive Member through acompetitive process in accordancewith the prescribed rules, who are

knowledgeable in physical planning,environmental science, public health,law, security, public affairs or socialwork

(d) the Director of the Agency who shall bethe Secretary;

(2) The Appeals Board shall be responsible forreviewing on appeal decisions made by a sub-countyCommittee.

(3) The conduct of business and affairs of theAppeals Board shall be in such manner as may beprescribed.

13. ( 1) Aperson intending to produce, manufacture,import, distribute any alcoholic beverage in thecounty or to operate an establishment for the sale ofan alcoholic beverage shall make an application in aprescribed form to the sub-county Committee in thesub-countywhere the premise is to be situated and shallpay a prescribed fee.

(2) The application under subsection (l) shallcontain-

(a) a comprehensive information on the nature,orientation and other justification for theestablishment of the manufacturing plantor establishment for sale;

(b) an indication as to whetherthe manufactureor sale of the alcoholic beverage islicensed in another county and if so theevidence of such licensing provided thatsuch indication does not automaticallyguarantee that a licence will be issued;

The Bomet County Alcoholic Beverage Control ond Mqtagement Act, 2 0 I 4 I 9

(c) for a manufacturer's licence, certificationfrom Kenya Bureau of Standards;

(d) such other matters as may be prescribed.

(3) The Commitiee shall, within twenty-one days

after the submission of application for a licence, prep:lrea notice setting forth the nzrmes of all applicants, thetypes of licences applied for, the premises in respectof which the licences are applied for and the time, date

and place of the meeting, and shall forlhwith cause a

copy of the notice to be-(a) published at the office of the Sub-county

administrator for a period of not less thantwenty-one consecutive days;

(b) posted in some conspicuous place at ornear the applicant's premises;

(c) sentto the sub-county public health officerin the sub-county in which the premisesin respect of which the licences are

applied for are situated;

(d) sent to the National EnvironmentalManagement Authority in the sub-countyin which the premises in respect of whichthe licences are applied for are situated ;

and

(e) sent to the sub-county physical planningofficer.

(4) The sub-county public health officer, NationalEnvironmental Management Authority and the sub-

county physical planning officer shall, before thehearing of any application under this section, report as

fully as possible to the Committee on all matters whichmay be relevant to the consideration of the application.

(5) AnV person may lodge objection to an

application.


(6) Every objection to an application shall bemade in writing to the Secretary to the Committee,and the objector shall serve notice of the grounds ofthe objection on the applicant, personally or by post, atleast seveh days before the hearing of the applicationand the onus of proof of such service shall be on theobjector.

(7) The Committee may, of its own motion, takenotice of any matter orthing which, in the opinion oftheCommittee, constitutes an objection to an application,whether ornot any objection has been otherwise lodged.

(8) Where in respect of an application theCommittee acts in pursuance of subsection (7), theCommittee shall inform the applicant of the nature ofthe objection, and shall. if the applicant so requests.adjoum the hearing for such period, not being less thanseven days, as the Committee considers necessary toenable the applicant to reply thereto.

(9) Every person making an application shall,save as otherwise provided, appear in person or by anadvocate before the Committee, and shall satisfy theCommittee that there is need for the grant of a licenceof the type applied for in the particular locality inrespect of which the application is made.

(10) The Committee may require the personalappearance before it ofthe applicant, or of the managerof the premises to which the application relates, or ofboth of them and of any other person whose attendanceis considered by the committee to be necessary.

(11) Any objector may appear personally or by anadvocate at the hearing of the application.

The Bomet County Alcoholic Beverage Control and Management Act, 2014 2l

(12) A sub-county may authorize, in writing, anyperson to appear before any sub-county committeehavrng jurisdiction in any part of the area within thecounty for the purpose of representing the inhabitantsof that part in respect of any objection lodged againstan application.

(13) Where a sub-county committee considers itnecessary to take evidence respecting any questionto be determined by the court, such evidence shall begiven on oath, and the chairman shall be empowered toadminister oaths.

(14) For the purposes of Chapter XI of thePenal Code (which concems offences relating to theadministration of justice), all proceedings before a

committee shall be deemed to be judicial proceedings.

(15) Every committee shall maintain records ofall its proceedings, and, in particular, of the purposefor which an application was made, and notes of the

evidence given and of the arguments adduced and the

decision of the court thereon:

Provided that no decision shall be quashed on

appeal solely by reason of any omission or error in suchrecord, unless it appears that a substantial miscarriageofjustice has thereby been occasioned.

(16) The committee shall, within twenty-onedays of receipt of the application under subsection (1),record the application and assess the same on the basisof the objections received, if any, and the interests ofthe sub-county, and shall ensure that-

(a) the available premises are suitable withregard to the nature of the licence beingsought,

(b) the premises conform to the prescribedrequirements of the occupational healthand safety regulations;


Cap 496

Grant ofa licence,

(c) the applicant possesses the infrastructureand equipment necessary to carry out thebusiness applied for;

(d) the applicant for a licence to brew,distill, bottle or manufacture analcoholic beverage possesses necessaryqualifi cations and relevant requirementsstipulated under Standards Act or anyother relevant written law; and

(e) the premises has sufficient number ofcompetent staff in line with such normsas may be prescribed.

14. (l) The sub-county committee shall, afterconsidering the application under section 12, indicatein writing whether it objects to the grant of the licenceapplied for.

(2) Where the committee has no objection to theapplication under section 12, it shall grant a licence tothe applicant upon payment of the prescribed fee.

(3) The licence issued shall be in such form as

may be prescribed and subject to such conditions as thesub-county committee may consider fit.

(4) Where the committee is not satisfied with theapplication under subsection (l), it may-

(a) reject the application giving reasons andnotiff the applicant accordingly withinthirty days ofthe decision to reject; or

(b) make comments and recommendationsthereon and retum it to the applicantwithin fourteen days.

(5) The applicant to whom the application isretumed under subsection (4) (b) may re-submit arevised application within thirty days of the date ofnotification.

The Bomet County Alcoholic Barcrage Control and Management Act, 2014 23

Provisional licence.

(6) On receipt of any revised application undersubsection (5), the Committee shall, within thirtydays determine the application in accordance with thisAct and upon such determination, if satisfied, issue alicence.

(7) Where the Committee grants a licence underthis section it shall publish the grant in the countyGazette and in the County Govemment's website.

15. (1) Despite the provisions of sections 13 and14, the Committee may issue a provisional licensefor the manufacture or sale of an alcoholic beveragefor such period not exceeding six months as may beappropriate where the Committee is satisfied thatthe applicant for the license has demonstrated to ttresatisfaction of the Committee that the manufacture orsale of the alcoholic beverage is licensed in anothercounty but the issuance of the provisional licenseshall be subject to the applicant complying with theprovisions of sections 13 and 14 within the period ofthe provisional licence.

(2) Where premises are about to be constructedor reconstructed or are in course of construction orreconstruction for the purpose of being used for thesale of alcoholic beverage for consumption on suchpremises, any person having an interest in the premisesmay apply in the prescribed form to the Sub-countycommittee for an assurance that, on the completionof the construction or reconstruction, a licence of thetype to be specified in the application will be granted inrespect of such premises.

(3) The provisions of sections 13 and 14 shallapply to such applications, which shall be accompaniedby a signed copy of the plans of such premises.


Licence for

premises.

(4) The committee may, subjectto such reasonableconditions as it may therein include, give to theapplicant an assuftrnce in the prescribed form that, onthe completion of the premises, a licence of the typespecified therein will be granted or it may reftrse to givesuch an assurance.

(5) Where such an assurance has been givenunder subsection (4), the sub-county committee may,on any date, on being satisfied that the premises havebeen completed in accordance with the signed planssubmitted under sub section (3) and that any conditionswhich may have been imposed in the assurance havebeen complied with, issue to the applicant a licenceof the t1,pe specified in the assurance in respect of thepremises.

(6) AnV assurzmce given under subsection (a) shallbecome ineffective and the committee shall not issue alicence if, between the date of the giving thereof andthe date of completion of the premises, the applicantbecomes a person to whom in accordance with section16, a licence may not be granted.

16. (l) The committee shall notgrantanew licencefor the sale of an alcoholic beverage to be consumedon the premises unless the Sub-county committee issatisfied-

(a) that it would be in the public interestfor provision to be made for the sale ofalcoholic beverage for consumption onthe premises in the particular locality inrespect of which the application is made,and that the number of such premisesin respect of which such licences havealready been granted is insufficient forthe requirement of the locality given thepopulation density per square kilometreand the permitted maximum number ofsuch premises as shall be prescribed bylaw:

The Bomet CountyAlcoholic Beverage Control and ManagementAct, 2014 25

Persons not eligible

for a licence.

Provided thatno licence shall be grantedtosell alcoholic beverage in any institutionof basic education including primary and

secondary schools or any residential areaas have been demarcated by or under therelevant written laws;

(b) that the premises in respect of which theapplication is made are in good repair andare in a clean and wholesome condition,and are provided with adequate andproper sanitary arrangcments:

(c) that the premises in respect of which theapplication is made are located at leastthree hundred metres from any nurseryprimary secondary or other leaminginstitutions for persons under the age ofeighteen years.

(2) The Committee shall not grant a licence forthe sale of an alcoholic beverage in -

(a) a supermarket or such other related retailchain store

(b) in an outlet or premises located within afuel station or a fast food restaurant.

17. (l) The committee shall not grant a newlicence or transfer a licence to any person who-

(a) has failed to satisfl, the Committee, ifcalled upon to do so, of the applicantsgood character and standing in relation tothe expectations under this Act; or

(b) has been convicted of an offence underthis Act ;

(c) in the case ofa retail licence, is not residentin Kenya, or

(d) is under twenty one yenrs of age, or

26 The Bomet County Alcoholic Beverage Control qnd Management Act, 2014

(e) is an undischarged bankrupt.

(2) The committee may refuse to renew an existinglicence only when the Committee is satisfied that-

(a) the licensee is not afit and properpersonto hold the licence; or

(b) the licensee has been convicted of anoffence under this Act or any Act at anytime in force regulating the manufacture,distillation, distribution sale of analcoholic beverage for more than threetimes within one year; or

(d) the business to which the licence relatesis conducted in a manner that is inbreach of this Act, or any other rules andregulations forthe time being in effect, orconditions set by the Committee ; or

(e) the conditions ofthe licence have not beensatisfactorily fuIfi lled; or

(0 the premises to which tJre licence relatesare not in a proper state of repair, orare not provided with proper sanitaryarrangements, or do not comply withthe reasonable requirements of the sub-county public health officer and the ownerof the premises or the licensee refuses oris unable to give satisfactory guaranteesthat the necessary repairs will be carriedout, or due compliance effected, as thecase may be, within a time specified bythe Committee.


Validity and

renewal of licences.

1E. (l) Exceptas otherwise provided inthisAct,the Committee may, subject to this Part grant, renew,

transfer or remove a licence, and may embody thereinsuch conditions as it may deem appropriate, or it mayrefuse to grant renew, transfeq withdraw or cancel alicence.

(2) Every licence and every renewal, transfer,withdrawal or cancellation thereof shall be sufficientlyauthenticated by the Committee.

(3) Every grant of a licence or its every renewalor transfer shall-

(a) be subject to the payment of such fee orfees as may be prescribed;

(b) expire on thirty first day of December eachyear'

(c) speci!, in the licence the hours stipulatedunderthe First Schedule within which the

sale of alcohol is permitted and any otherrelevant condition.

(4) Where an application for the renewal of alicence has been made and the Committee has not bythe date of expiration of the licence reached a decisionthereon, such licence shall continue in force until thedecision of the Committee is made known.

(5) Where an application for a licence has been

refused, or a licence has been cancelled, no subsequent

application by the former applicant or licensee for alicence of the same description shall be considered bythe Committee during the period of six months fromthe date of such refusal or cancellation.

19. (1) An applicant whose application for a newlicence, to renew or transfer a licence has been refusedor cancelled may within fourteen days of such refusal,request in writing the review of such refusal to the

Appeals Board.


fught of review.

Appeals to court.

Licence to body

corporate.

(2) A person aggrieved by the decision of the sub-county committee to grant a new licence or to renewa licence may request in writing the review of suchdecision.

(3) Upon receipt of a request under this section, theAppeals Board shall notifu the sub-county committeeof the pending review.

(4) The Appeals Board shall within twenty-onedays consider and make a final determination on therequest for review.

(5) The Appeals Board may-

(a) dismiss the request for review if in itsopinion, the request is frivolous orvexatious;

(b) uphold the decision of the committee;

(c) annul the decision ofthe committee

(d) give directions to the sub-county committeewith respect to any action to be taken;

(e) make any other declaration as it may deemfir.

20. The right to request for review under section19 does not prohibit a person from seeking any otherlegal remedy a person may have.

21. An applicant under section 17 who is notsatisfied with the decision of the Appeals Board maywithin twenty-one days appeal to the High Court.

22. (l) Alicence issuedto abody corporate shallbe issued in the name of the body corporate:

Provided thatthe committee may require priordisclosure of the directorship of the body corporate orrefuse to grant a licence to the body corporate if any ofthe directors does not qualifu to be granted the licenceindividually.


Types oflicences.

Transfer of licence

(2) No transfer of a licence issued to a bodycorporate shall be necessary on any change in the officeof secretary, but any person for the time being holdingsuch office shall be entitled to the privileges granted by,and shall be subjectto the duties and liabilities imposedupon the holder of, such licence.

23. (l) The several licences which may be grantedunder this Act shall be those specified in the SecondSchedule, and the provisions of that Schedule andof any rules made under this Act shall have effect inrelation to the respective licences therein specified.

(2\ Save as otherwise provided in this Act nolicence may be granted so as to be applicable to morepremises than one.

(3) The Sub-county Committee shall, when alicence is granted, renewed, withdrawn or cancelled,include in the licence a sufficient description of thelicensed premises.

(4) A licence may be granted to apply to morethan one premise, subject to such conditions :!s maybe specified in the licence and to specification of theaddresses of all such premises in the licence.

24. (l) Where a licensee sells or leases orotherwise disposes ofthe premises orbusiness specifiedin his licence, he may apply in writing to the Sub-county committee for the transfer of his licence to thepurchaser or lessee or otherwise of such premises, andthe Sub-county Committee may, if it thinks fit" grant atransfer of such licence.

@ No further fee shall be payable in respect ofa licence granted under subsection (3) if, at the date ofthe grant, the licence which was temporarily transferredwas valid for a period of more than six months.


Removal oflicence.

Display of licence.

(3) ln the event of the death, bankruptcy orunsoundness of mind of a licensee, or in any similarevent to which the Sub-county committee declares inwriting that this section should be applied, it shall belawful, for the purposes of this Act for the executor.administrator, trustee or manager, as the case maybe or any other person approved by the Sub-countycommittee, to carry on the business of the licenseewithout any transfer or grant of a licence eitherpersonally or by an agent approved by the Sub-countycommittee.

(4) Every person to whom a licence may have

been transferred under subsection (1), and every personpermiued to carry on a business without a transfer orgrant ofa licence in pursuance ofsubsection (3), shallpossess all the rights and be liable to all the duties andobligations of the original licensee

25. If the renewal of a licence is refused, thelicensee shall, on payment of the proportionate partof the fee for the appropriate licence, be entitled to alicence of such description and for such period, notexceeding three months, as the Sub-county Committeemay consider necessary for the purpose of disposing ofthe alcoholic beverage or apparatus on the premises,

such period to commence on the day afterthe last sittingof the Sub-county Committee at which the renewal ofhis licence has been refused, or on the day after thetermination of his existing licence, whichever day isthe later.

26. (l) Every licence shall be prominently andconspicuously displayed on the premises to which itrelates, and any licensee who fails or neglects so todisplay his or her licence commits an offence.

(2) Where a wholesale alcoholic beverage licenceis granted so as to be applicable to more premises thanone, it shall be displayed in the premises first namedtherein and copies thereof displayed in the other outlets.

The Bomet County Alcoholic Beverage Control and Management Act, 201 4 3 I

Employment for

sale ofalcoholic

beverage.

Drunken behaviour.

(3) Any person causing or permitting to be on hisor her premises or on premises under his or her controlany words, letters or sign falsely importing that he orshe is a licensee commits an offence.

27. (I) Notwithstanding the provisions of anyother written law, no licensee shall employ a personunder the age, to sell, control or supervise the sale ofalcoholic beverage or to have the custody or control ofalcoholic beverage on licensed premises.

(2) Where a licensee permits another person

to manage, superintend or conduct the day-to-daybusiness of the premises in respect of which he islicensed, the licensee shall not be relieved of his dutiesand obligations under this Act.

(3) A person who contravenes the provisions ofthis section commits an offence.

28. (l) A licensee or an agent or employee of alicensee may refuse to admit to, and shall expel from,the premises to rvhich his licence relates any personwho is drunk and disorderly, violent, or quarrelsome,or whose presence would subject the licensee to a fineor penalty under this Act.

(2) A person referred to in subsection (l) who,on being requested by the licensee or his agent oremployee, or by a police officer, to quit the licensedpremises, refuses to do so, commits an offence.

(3) On the demand of a licensee or his agentor employee, a police officer shall expel or assistin expelling from the licensed premises the person

referred to in subsection (l).

(4) A licensee who permits any drunkennessleading to violent, quarrelsome or riotous conduct totake place on the premises to which the licence relatescommits an offence.

32 The Bomet CountyAlcoholic Beverage Control andManagementAct, 2014

Debt from sale ofalcoholic beverage

Access by persons

under the age oftwenty one.

Repo(s by public

health officers and

police officers.

29. No suit shall be maintainable to recoverany debt alleged to be due in respect of the sale ofany alcoholic beverage which was delivered forconsumption on the premises where it was sold unlessit was sold for consumption with a meal supplied at thetime of sale or unless the person to whom it was soldor supplied was at the time of the sale a lodger on suchpremises.

30. (l) Aperson holding a licence to manufacture,store or sell alcoholic beverage under this Act shall notallow a person under the age of twenty one years toenter or gain access to the area in which the alcoholicbeverage is manufactured, stored, sold orconsumed andif the holder of a licence or employee allows a personunder the age oftwenty one years, such person shallcommit an offence and shall, on conviction, be liable toa fine of one hundred and fifty thousand shillings, or toimprisonment for a term of one year, or to both.

(2) A person shall not enter or gain access to anarea referred to under subsection (l) if such a person isin custody or accompanied by a person under the age

of twenty one years.

(3) The holder of a licence or an employee shall,before serving any person who appears to be underthe age of twenty one years, demand proof that theperson is ofthe age oftwenty one years or over, andif the person refuses to furnish proof the licensee oremployee shall not serve that person and shall requestthe person to leave the premises and if the person failsor refuses to leave, that person shall commit an offence.

31. (1) A Sub-county public health officer withinwhose jurisdiction the premises fall shall report to theSub-county Committee any licensed premises whichare deficient in their state of sanitary or drainageconditions, or which are in bad repair.

The Bomet CountyAlcoholic Beverage Control and Management Act, 2014 33

Cancellation oflicence.

(2) A Sub-county public health officer or anyperson authorized by him in writing in that behalf mayenter and inspect any licensed premises for the purpose

of ascertaining whether a report under subsection (l)is required.

(3) A police omcer not below the rank ofInspector shall report in writing to the chairpersonof the appropriate Sub-county Committee every case

in which a licensee is of drunken habits or keeps adisorderly house, or commits any breach of any of theprovisions of this Act or of his licence.

(4) A police officer not below the rank of Inspectormay witlout written authority enter and inspect anylicensed premises for the purpose of ascertainingwhether a report under subsection (l) is required.

32. (l) Upon receipt of a report made undersection 29 the Sub-countv Committee shall-

(a) send, by registered post or other verifiablemode of dispatch, a copy of the reportto the licensee concemed therewith,informing him that at a meeting of theSub-county Committee to be held ona date to be specified, but not less thanthirty days there from, the report will be

considered by the Sub-county Committee;

(b) send a copy of the report to every memberof the Sub-county committee and to theOfficer Commanding Police Services inthe Sub-county ;

(c) inform the Sub-county public healthofficer or the'police officer, as the case

may be, of the date upon which theSub-county committee will consider thereport, and require him to attend on thedate specified.


Conformity with

requirements.

(2) A licensee concerning whom a report is to be

considered may appear in person or by advocate beforethe Sub-county Committee.

(3) The Sub-county Committee, having dulyconsidered the report and having heard the licensee,

if he appears, frdy, if it thinks fiq cancel the licenceof the licensee reported upon, or it may make such an

order in respect of such licence or the licensed premisesspecified therein as, in the opinion of the Sub-countyCommittee, is necessary.

(4) Aperson aggrieved by the decision of the Sub-county committee upon any such report may withintwentyrne days appeal against the decision to theAppeals Board.

(5) The Appeals Board , on an appeal under thissection, may confirm or reverse the decision of the

Sub-county Committee.

(6) If a licence is cancelled or if on appeal undersub section (5), the appeal is dismissed by the AppealsBoard, the licensee shall be entitled, on payment of theproportionate part ofthe fee forthe appropriate licence,to a licence ofsuch description and for such period, notexceeding three months, as the Sub-county committeemay deem necessary forthe purpose of disposing ofthealcoholic beverage or apparatus on the premises. suchlicence to run from the date of the decision of the Sub-county Committee or ofthe Court as the case may be.

PART IV-GENERAL REQUIREMENTS

33. (1) A person shall not manufacture, ordistribute or sell an alcoholic beverage in the countythat does not conform to the requirements of this Actor any other written law regulating alcoholic beverage.

The Bomet CountyAlcoholic Beverage Control and Management Act, 2014 35

Supply to young

persons,

(2) A person who contravenes the provisions ofthis section in relation to manufacture, distributionand importation of an alcoholic beverage commits anoffence and shall, on conviction, be liable to a fine oftwo million shillings, or to imprisonment for a term offive years, or to both.

(3) A person rvho contravenes the provisions ofthis section in relation to sale of an alcoholic beveragecommits an offence and shall, on conviction, be liableto a fine of one hundred and fifty thousand shillings, orto imprisonment for a term of one year, or to both.

34. (1) A person shall not sell, supply or providean alcoholic beverage knowingly to a person under theage oftwenty one years.

(2) Subject to subsection (3), a person whocontravenes the provisions of subsection (t) commitsan offence and shall, on conviction, be liable to afine of one hundred and fifty thousand shillings, or toimprisonment for a term of one year, or to both.

(3) Notwithstanding the provisions of subsection(l), it shall be a defence to an offence underthis sectionif it is established that the accused person attempted toverifu that the young person was at least twenty oneyears of age by asking for and being shown any of thedocuments specified in subsection (4) for the purpose

of verifring the age of the young person and believed,on reasonable grounds, that the documentation wasauthentic.

(4) For the purposes of this section, the followingdocumentation may be used to verifi, a person's age-

(a) a national identity card issued by theRepublic of Kenya;

(b) apassport issued by the Republic of Kenyaor any other country; or

(c) any other documentation as the ExecutiveMember may prescribe.

\

36 The Bomet County Alcoholic Beverage Control and Management Act, 201 4

Display of signs

Vending machines

Selling in sachets.

35. (1) Every retailer shall post, in the prescribedplace and manner, signs in the prescribed form and withthe prescribed content that inform the public that thesale orthe availing of an alcoholic beverage to apersonunder the age of twenty one years is prohibited by law.

(2) Every sign required to be posted undersubsection (l) shall -

(a) be disptayed on a surface measuring notless than 12 inches by 8 inches in size;

(b) bear the word "WI{RNING" in capitalletters followed by the prescribedhealth warning which shall appear inconspicuous and legible type and shall beblack on a white background or white ona black background and shall be enclosedby a rectangular border that is the samecolour as the letters of the statement;

(c) be in English or in Kiswahili.

(3) A retailer who contravenes any of theprovisions of this section commits an offence andshall, on conviction, be liable to a fine of fifty thousandshillings, or to imprisonment for a term of six months,or to both.

36. (1) A person shall not sell or permit analcoholic beverage to be sold by way of an automaticvending machine.

(2) Aperson who contravenes this section commitsan offence and shall, on conviction, be liable to afine ofone hundred thousand shillings, orto imprisonmdnt fora term of twelve months, or to both.

37. (l) A person shall not sell, manufacture, packor distribute an alcoholic beverage in sachets or suchother form as may be prescribed under this Act or anyother relevant written law.


Sale to intoxicated

person.

I)rsordedv conducl

(2') Notwithstanding the provisions of subsection( 1),-

(a) a person shall not manufacture, pack,distribute or sell in the county an alcoholicbeverage in a container of less than 250millilitre;

(b) any other distilled or fortified alcoholicbeverage shall only be manufactured,packed, sold or distributed in glass bottlesof the kind specified in paragraph (a)

or as may be prescribed in the nationallegislation related to control of alcoholicbeverage.

(3) Aperson who contravenes this section commitsan offence and shall, on conviction, be liable to a fine ofone million shillings, or to imprisonment for a term ofseven years, or to both,

PART V- SALE AND CONSUMPTION

38. A licensee who sells an alcoholic beverageto a person already in a state of intoxrcation or byany means encourages or incites him to consume an

alcoholic beverage commits an offence.

39. (l) A person found by a police officer to be

drunk and incapable or drunk and disorderly in or near

a street, road, licensed premises, shop, hotel or otherpublic place may be arrested without lvarrant andbrought without unreasonable delarv before a Magistrate

(2) Aperson arrested forbeing drunk and incapableor drunk and disorderly in or near a place referred to insubsection (l) shall, on conviction, be liable to a fine ofone thousand shillings or to imprisonment for a term ofthree months or to both.


(3) Upon conviction under sub-section (2), theMagistrate may issue an order for community serviceto any person convicted of the offence under thissection for more than one time in accordance with the

crpe3 provisions of the Community Service Orders Act.

(4) Despite sub-section (3), a person convictedunder subsection (2) on more than three occasions inany period of trvelve months shatl -

Breach oflicence

(a) be ordered by the convicting magistrate toundergo athis own cost, such rehabilitationprogr:rmme as may be appropriate in apublic health institution ;

(b) be forttrwith reported by the convictingmagistrate to the Sub-county Committee,which shall inform such licensees as hedeems desirable of such convictions, andtlereupon, and until a period of twelvemonths has passed without any furthersuch conviction in respect of that person,any licensee so informed who knowinglysells or supplies alcoholic beverage to orfor delivery to that person commits anoffence, and it shall furthermore be anoffence for that person to be in possession

of any alcoholic beverage.

40. (1) Apersonwho sells an alcoholicbeverageor offers or exposes it for sale orwho bottles an alcoholicbeverage except under and in accordance with, and onsuch premises tls may be specified in a licence issued inthatbehalf underthisAct commits an offence and shall,on conviction, be liable-

II


for a first offence, to a fine offifty thousandshillings or to imprisonment for a term ofnine months, or to both;

for a second or subsequent offence, to afine of one hundred thousand shillings orto imprisonment for a term of one year orto both,

and in addition to any penalty imposed under paragraph(a) or (b), the court may order, the forfeiture of allalcoholic beverage found in t}re possession, custodyor control of the person convicted, together with thevessels containing the alcoholic beverage.

(2) Except as may be provided for in this Act, aperson shall not-

(a) sell, an alcoholic beverage in anyworkplace, office, factory', public parkor any public recreational faciliry publictransport vehicle, public beach, sportsstadium or public street;

(b) sell, purchase or consume an alcoholicbeverage in an alcoholic beverage sellingoutlet after the expiry of the hours forwhich the outlet is licensed to sell thealcoholic beverage.

(3) A person ryho contravenes the provisionsof subsection (2) commits an offence and shall, onconviction, be liable to the penalties specified undersubsection (1).

(a)

(b)

\\

40 The Bomet CounlyAlcoholic Beverage Control and ManagementAct, 2014

Sale to authorized

officer-

Non disclosure ofconviction.

SaIe without

licence.

41. A person who knowingly sells, supplies oroffers an alcoholic beverage to an authorized officer orto a police officer in uniform or who harbours or suffersto remain on licensed premises any such police officerexcept for the purpose of keeping or restoring orderor otherwise in the execution of his duty, commits anoffence and shall, on conviction, be liable to a fine offifty thousand shillings or to imprisonment for a term ofthree months or to both.

42. A person who is required by any provision ofthis Act to disclose any conviction and fails to do sowhen making any application commits an offence.

43. (l) If any person purchises any alcoholicbeverage from a licensee whose licence does not coverthe sale of that alcoholic beverage for consumptionon the premises, and the alcoholic beverage on thepremises where it is sold, or in any premises adjoiningor near to those premises, if belonging to the seller ofthe alcoholic beverage or under his control or used byhis permission, or on any highway adjoining or nearany such premises, and it is proved to the court thatthe drinking of the alcoholic beverage was with theprivity or consent of the licensee who sold the alcoholicbeverage, the licensee commits an offence.

I

The Bomet County Alcoholic Beverage Control and Management Act, 201 4 4l

Sale ofadulterated

alcoholic beverage

(2) If a licensee whose licence does not coverthe sale of alcoholic beverage to be consumed on hispremises himselftakes or carries, or employs or suffersany other person to take or carq/, any alcoholic beverageout of or from his premises for the purpose of being soldon his account, or for his benefit or profit, and ofbeingdrunk or consumed in any place (whether enclosed ornot, and whether or not a public thoroughfare) otherthan the licensed premises, with intent to evade theconditions of the licence, the licensee commits anoffence, and, if the place is any house, tent, shed orother building belonging to the licensee or hired, usedor occupied by him, the licensee shall be deemed,unless the contrary is proved, to have intended to evadethe conditions of the licence.

44. (l) Aperson shall not keep for sale, offer forsale or sell-

(a) any alcoholic beverage which has been inany way adulterated, or diluted by anyperson,

(b) any non-alcoholic beverage which has

been in any way adulterated with alcohol,or which contains any of the substancesprohibited under this Act.

(2) A person who contravenes the provisionsof this section commits an offence and shall, onconviction, be liable to a fine of ten million shillings orto imprisonment for a term of twenty years, or to both.

42 The Bomet County Alcoholic Beverage Control and Management Act, 2014

Proof of sale.

Burden ofproof

(3) On the conviction of a licensee of an offenceunder subsection (2), the court may, in addition to anyother penalty it may lawfully impose, if it finds that thedrink in respect of which the offence was committedwas adulterated by a substance or substances whichrendered the drink unfit for human consumption, andunless the licensee proves to the satisfaction of thecourt that he took all reasonable precautions againstsuch adulteration and that such adulteration took placewithout his knowledge or consent, order that his licencebe forfeited, and no licence shall thereafter be grantedor transferred to him.

45. (l) ln anyproceedings underthisAct relatingto the sale or consumption of an alcoholic beverage,such sale or consumption shall be deemed to be provedif the court is satisfied that a transaction in the nature ofa sale took place, whether or not any money has beenshown to have passed, or as the case may be, if thecourt is satisfied that any consumption was about totake place.

(2) Evidence of consumption or intendedconsumption of an alcoholic beverage, on licensedpremises by some person other than the licensee or amember of his family or his employee or agent shallbe prima facie evidence that the alcoholic beveragewas sold by or on behalf of the licensee to the personconsuming or aboutto consume the alcoholic beverage.

46. (1) The onus of proving that a person islicensed under this Act shall lie on that person.


Endorsement ofconviction on

licence.

Forleiture oflicence upon

conviction.

(2) The fact that a person not licensed underthis Act to sell alcoholic beverage has a signboardor notice upon or near his premises fitted with a baror other place containing bottles, casks or vessels so

displayed as to induce a reasonable beliefthat alcoholicbeverage is sold or served therein, or having alcoholicbeverage concealed, or more alcoholic beverage thanis reasonably required for the person residing therein,shall be deemed to be prima facie evidence of theunlawful sale of alcoholic beverage by that person.

(3) lo any proceedings under this Act, wherea person is charged with selling alcoholic beverage

without a licence or without an appropriate licence,such alcoholic beverage being in a bottle and appearingto be unopened and labelled by its bottler, the contentsof such bottle shall be deemed, unless the contrary is

proved, to be alcoholic beverage of the descriptionspecified on the label thereof.

47. Every licensee who is convicted of an offenceunder this Act shall produce his licence to the courtconvicting him, and the court shall endorse every suchconvi ction on the licence and the relevant administrativeof;hcerofthe court shall inform the relevant Sub-countycommittee.

48. If in any proceedings before a court it appearsthat a licensee-

(a) whether he was present in the licensedpremises or not, has permitted an unlicensedperson to be the owner or part owner ofthe business of the licensed premises or tohave a substantial interest in that business,

, except with the consent of the Sub-countycommittee; or


Prohibition

advertisement and

promotion.

(b) is convicted of an offence under this Act and

a previous conviction within the preceding

twelve months of the same or any otheroffence underthisAct orthree such previousconvictions within the preceding five yearsis or are proved; or

(c) is twice convicted within twelve months ofselling, offering or keeping for sale anyadulterared alcoholic beverage,

then the court may, in addition to any other penaltywhich it may lawfully impose, order that his licencebe forfeited, and that no licence shall be issued ortransferred to him for such period as the court mayorder.

PART VI-ADVERTISEMENTAI\D PROMOTION

49. (1) A person shall not promote an alcoholicbeverage by way of outdoor advertisement -

(a) in a manner that is false, misleading ordeceptive or that are likely to create

an erroneous impression about thecharacteristics, health effects, healthhazards or social effects of the alcoholicbeverage;

(b) through painting or decorating a residentialbuilding with the name of the alcoholicbeverage or manufacturer, colour and

brand images or logos associated with amanufacturer or an alcoholic beverage orany other related form; and


(c) in places demarcated under any writtenlaw as residential areas or within a

distance of three hundred metres fromnursery primary secondary school, orother institution of learning for persons

under the age of twenty one years or aplace ofworship, health facility or a publicplayground or any other public land orproperty or in public service vehicle.

(2) Aperson who contravenes the provisions ofthissection commits an offence and shall, on conviction, beliable to a fine of five hundred thousand shillings, or toimprisonment for a term of three years, or to both.

(3) Pursuant to Article 24(2) of the Constitution,the right to freedom of expression set out in Article 33

of the Constitution is limited to the extent specified inthis section for the purpose of-

(a) protecting consumers of alcoholic beveragefrom misleading or deceptive inducementsto use alcoholic beverage; and

(b) protecting persons underthe age oftwentyone years from negative impact on healthand social development from exposure toadvertisements of alcoholic beverage;

(c) protecting the youth from harmful practicesand exploitation.

Promotion at

underage events

s0. (1)beverage-

(a)

A person shall not promote an alcoholic

at any event or activity associated withpersons underthe age oftwenty one years;

using such things or materials that are

associated with persons under the age oftwenty one years.

(b)

The Bomet CountyAlcoholic Berterage Conlrol and ManagementAct, 2014

(2) A person who contravenes the provisions ofthis section commits an offence and shall, on conviction,be liable to a fine of five hundred thousand shilling orimprisonment for a term of three years or to both.


of the Constitution is limited to the extent specified inthis section forthe purpose of protecting persons underthe age of twenty one years from negative impacton health and social development from exposure toadvertisements of alcoholic beverage

51. (t) Alicensee shall not-

(a) award, grant or give to a person an alcoholicbeverage for consumption in or outsidethe licensed the premises without anyconsideration equivalent to the marketprice of the alcoholic beverage; or

(b) promote any alcoholic beverage in such amanner as to encourage more consumptionof an alcoholic beverage in order to winan award or prize.

(2) Aperson who contravenes any ofthe provisionsof this section commits an offence and shall, onconviction, be liable to a fine of five hundred thousandshillings, or to imprisonment for a term of three years,

or to both.

l

l

I

l

l

ldEuI,

Hl!

c,

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Encouraging

consumption.



of the Constitution is limited to the extent specified inthis section for the purpose of protecting consumersof alcoholic beverage from misleading or deceptiveinducements to use alcoholic beverage and also forthe purpose of protecting persons under the age ofeighteen years from negative impact on health and

social development from exposure to advertisementsofalcoholic beverage.

PART VII- ENFORCEMENT

Authorisedofficers. 52- (l) The Executive Member shall, uponrecommendation by the Sub-county Committee,appoint for each Sub-county, any person or class ofpersons to be authorised officers for purposes of thisAct

(2) The Executive Membershall issue acertificateof appointrnent to svery person appointed under thissection.

(3) Notwithstanding the provisions ofthis section,the following officers shall be deemed to be authorisedofficers for the purposes of this Act-

Cap242

No ll of2Oll

Cap 496.

Cap 513.

No. l3l2008

(a) public health officers appointed underthePublic Health Act;

(b) officers appointed as enforcement officersunder the National Police Service Act,Standards Act, Weights and Measures Actand Anti-counterfeit Act; and

(c) any other person upon whom any writtenlaw vests functions of the maintenance oflaw and order.


Places authorized

officers may enter.

Powers of officers,

53. (l) For the purposes of ensuring compliancewith this Act an authorised officer may, at anyre:lsonable time, enter any place in which the officerbelieves on rcasonable grounds that any person orpersons is in any way contravening the provisions ofthis Act.

(2) An authorised officer ent€ring any premisesunder this section shall, if so required, produce forinspection by the person who is or appears to be incharge of the premises the certificate issued to himundersection 5l (2).

(3) Pursuant to Article 24(2) of the Constitution,the right to privacy set out in Article 31 of theConstitution is limited to the extent specified in thissection for the purpose of protecting consnmers ofalcoholic beverage by ensuring fairand ethical businesspractices related to production, distribution, promotionand sale of alcoholic beverage as specified in this Act.

54. (l) In carrying out an inspection in any placepursuant to section 53, an authorised officer may-

(a) examine an alcoholic beverage oranythingreferred to in that section;

(b) require any person in such place to producefor inspection, in the manner and formrequested by the officer, the alcoholicbeverage orthing;

(c) open or require any person in the placeto open any container or package foundin the place that the officer believes onreasonable grounds contains the alcoholicbeverage orthing;

(d) conduct any test or analysis or take anymeasurements; or

The Bomet County Alcoholic Beverage Control and Monagement Act, 2014 49

Use ofrecords

(e) requirc any person found rn the placeto produce for inspection or copying,any written or electronic informationthat is relevant to the administration orenforcement of this Act.

(2) Pursuant to Article 24(2) of the Constitution,the rights to privacy and property set out in Articles31 and 40 of the Constitution are limited to the extentspecified in this section forthe purpose of enforcementof this Act and for protecting consumers of alcoholicbeverage by ensuring fair and ethical business practicesrelated to production, distribution, promotion and sale

of alcoholic beverage as specified in this Act.

55. In carrying out an inspection in a place, anauthorised officer may-

(a) use or cause to be used any computer systemin the place to examine data containedin or available to the computer systemthat is relevant to the administration orenforcement of this Act;

(b) reproduce the data in the form of a print-out or other intelligible output and take itfor examination or copying;

(c) use or cause to be used any copyingequipment in the place to make copies ofany dat4 record or document;

(d) scrutinize any other record system in usein that place.

(3) Pursuant to Article 24(2) of the Constitution,the rights to privacy and property set out in Articles3l and 40 of the Constitution are limited to the extentspecified in this section for the purpose of protectingconsumers of alcoholic beverage by ensuring fairand ethical business practices related to production,distribution, promotion and sale of alcoholic beverageas specified in this Act.

50 The Bomet CountyAlcoholic Beverage Conttol and Management Act, 2014

Entry of dwelling

place.

Court to issue

warrant.

Use offorce

Certificate ofanalysis.

Assistance ofofficen.

56. An authorised officer may not enter a dwellingplace except with the consent of the occupant or underthe authority of a warrant issued under section 57.

57. (l) Upon an ex-parte application, amagistrateor judge of the High Court, ndy issue a warrantauthorising the authorised officer named in the warrantto enter and inspect a dwelling place, subject to anyconditions specified in the warrant, if the magistrate orjudge is satisfied by information on oath that

-(a) the dwelling place is a place referred to insection 56;

O) entry to the dwelling place is necessaryfor the administration or enforcement ofthis Act;

(c) the occupant does not consent to the entryor that entry has been refused or there arereasonable grounds for believing that itwill be refused.

(2\ The time of such entry shall be between sixo'clock in the forenoon and six o'clock in theaftemoon of any day ofthe week.

58. An authorised officer executing the warrantissued under section 58 shall not use force unless suchofficer is accompanied by apolice officer and the use offorce is specifically authorised in the warrant.

59. An authorised officer who has analyzed orexamined an alcoholic beverage or thing under thisAct, or a sample of it, shall issue a certificate or reportsetting out the results of the analysis or examination.

60. (l) The owner of a place inspected by anauthorised officer or the person in charge of the placeand every person found in the place shall -

(a) provide all reasonable assistance to enablethe authorised officer to carry out hisduties under this Act;

The Bomet County Alcoholic Beverage Control and Management Act, 201 4 5 I

Obstruction.

Seizure

(b) fumish the authorised officer with suchinformation as the of;Ecer reasonablyrequires for the purpose for which entryinto the place has been made.

(2) The inspecting agent in subsection ( I ) shall issue

the respective inspection completion and certificationcertificate once satisfied with the inspection.

61. A person shall not obstruct or hinder, orknowingly make a false or misleading statement to an

authorised officer who is carrying out duties under thisAct.

62. (l) During an inspection under this Act, an

authorised officer may seize any alcoholic beverage orthing by means of which or in relation to w'hich the

officer believes, on reasonable grounds, that this Acthas been contravened and a full inventory thereof shallbe made at the time of such seizure by the officer.

(2) The authorised officer may direct that anyalcoholic beverage or thing seized be kept or stored inthe place where it was seized or that it be removed toanother place.

(3) Unless authorised by a, officer, no person

shall remove, alter or interfere in any manner with anyalcohol, alcoholic beverage or other thing seized.

(4) Any person from whom an alcoholic beverage

or thing was seized may, within thirty days after thedate of seizure, apply to the High Court for an orderof restoration, and shall send notice containing thepre scribed information to the Executive Member withinthe prescribed time and in the prescribed manner.


Order for

restoration

General penalty

(5) Pursuant to Article 24(2) of the Constitution,the rights to privacy and properly set out in Articles31 and 40 of the Constitution are limited to the extentspecified in this section for the purpose of protectingconsumers of alcoholic beverage by ensuring fairand ethical business practices related to production,distribution, promotion and sale of alcoholic beverage

as specified in this Act.

63. (l) The High Court may order that the

alcoholic beverage or thing be restored immediately tothe applicant if, on hearing the application, the court issatisfied that-

(a) the applicant is entitled to possession ofthe alcoholic beverage or thing seized.and

(b) the alcoholic beverage or thing seized isnot and will not be required as evidence inany proceedings in respect of an offenceunder this Act.

(2) Where upon hearing an application made undersubsection (1) the court is satisfied that the applicant is

entitled to possession of the alcoholic beverage or thingseized but is not satisfied with respect to the mattersmentioned in paragraph (b) of subsection (1), the courtmay order that the alcoholic beverage or thing seized

be restored to the applicant on the expiration of onehundred and cighty days from the date of seizure ifno proceedings in respect of an offence under this Acthave been commenced before that time.

64. A person convicted of an offence under thisAct for which no other penalty is provided shall be

liable to a fine of five hundred thousand shillings, or toimprisonment for a term of three years, or to both.


Nature ofoffences.

Nature of evidence

in proceedings.

65. (1) Where a corporation, registered societyor other similar legal entity commits an offence underthis Act, any director or officer of the corporation,society or legal entity who acquiesced in the offencecommits an offence and shall, on conviction, be liableto the penalty provided for by this Act in respect of theoffence committed by the corporation, society or legalentity, whether or not such corporation, society or legalentity has been prosecuted.

(2) In any prosecution for an offence under thisAct" it shall be sufficient proofof the offence to establishthat the offence was committed by an employee oragent ofthe accused.

(3) Any act done or omitted to be done by an

employee in contravention of any of the provisions ofthis Act shall be deemed also to be the act or omissionof the employer, and any proceedings for an offencearising out of such act or omission may be taken againstboth the employer and the employee.

66. (l) In any prosecution for an offence underthis Act, a copy of any rn ritten or electronic informationobtained during an inspcction under this Act andcertified to be a true copy thereof shall be admissiblein evidence and shall" in the absence of evidence to thecontrary be proofofits contents.

(2) Subiect to this Part. a certificate or reportpurporting to be signed by an officer stating that theofficer analyzed anything to which this Act applies andstating the results ofthe analysis, shall be admissible inevidence in any prosecution for an offence under thisAct without proof of the signature or official characterof the person appearing to have signed the certificateor report.


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Forfeiture ofequipment.

(3) The certificate or report may not be receivedin evidence unless the party intending to produce ithas, before the trial, given the party against whomit is intended to be produced notice of not less thanseven days of that intention together with a copy of thecertificate or report.

(4) The party against whom the certificate orreport provided for under subsection (3) is producedmay, with leave of the court, require the attendance ofthe officer for purposes of cross examination.

(5) ln a prosecution for a contravention ofthisAct-

(a) information on a package indicating thatit contains an alcoholic beverage is, in theabsence of evidence to the contrary, proofthat the package contains an alcoholicbeverage; and ;

(b) aname oraddress on apackage purportingto be the name or address of the personby whom the alcoholic beverage wasmanufactured id, in the absence ofevidence to the contrary, proof that it wasmanufactured by that person.

PART VII - MISCELLANEOUS

67. (l) Any machinery equipment, implement,pipe, utensil, or other article used for the commissionof any offence under this Act shall be forfeited to theCounty Govemment.

(2) Every conveyance used for the commissionof any offence under this Act or for carrying anymachinery equipment, implement, pipe, utensil orother article used for the commission of any offenceunder this Act, or any alcoholic beverage, shall beforfeited to the County Govemment:


Regulations

Provided that where, on application made bythe person who was the owner of the conveyance to the

court in which any prosecution for any offence underthis Act or before which any proceedings under this Actforthe forfeifure and condemnation of any conveyance,the court is satisfied beyond reasonable doubt that theperson who was the owner of the conveyance was notconcemed in or privy to such use, the conveyance shallbe restored to the owner by the court.

(3) Pursuant to Article 24(2) of the Constitution,the rights to privacy and property set out in Articles3l and 40 of the Constitution are limited to the extentspecified in this section for the purpose of protectingconsumers of alcoholic beverages by ensuring fairand ethical business practices related to production,distribution, promotion and sale of alcoholic beveragesas specified in this Act.

68. (1) The Executive Member may, onrecommendation of the Agency, make Regulationsgenerally for the better carrying out of the objects ofthis Act.

(2) Without prejudice to the generality ofsubsection (l), the Regulations may-

(a) prescribe anything required by this Actto be prescribed or prohibit anlthingrequired by this Act to be prohibited;

(b) prescribe the forms of applications,notices, licences and other documents foruse under this Act;

(c) prescribe the fees payable under this Act.


Cap 2

No. 2312013

Transitional

provisions.

No. 4 of2010

1. General Retail

Alcoholic Beverage

Licence (on

licence)

(3) Pursuant to Article 94(6) of the Constitution,the legislative authority delegated to the ExecutiveMember in this section shall be exercised only forthe purpose and intent specified in this section and inaccordance with the principles and standards set out inthe Interpretation and General Provisions Act and theStatutory instrument Act.

69. (l) Notwithstanding any otherprovision ofthisAct to the contrary, a person who, immediately beforethe commencement of this Act was in accordance withAlcoholic Drinks Control Act a manufacturer, importer,distributor or retailer of any alcoholic beverage in theunder that Act shall be deemed to be a manufacturer,importer, distnbutor or retailer of any alcoholicbeverage under this Act.

(2) The manufacturer, importer, exporter,distributor or retailer ofany alcoholic beverage referredto in subsection (l), shall, upon coming into operationof this Act, comply with the requirements of this Act.

FIRST SCHEDULE (s.18)

LICENCE HOURS

Licence Hours, Conditions and Exceptions

Authorized to sell alcoholic beverage dunng weekendsand public holidays during the hours of 2:00 pm to 1l :00p.m.


2. General Retair Authorised to sell alcoholic beverage on any day of the

Alcoholic Beverage week during the hours of 5.00 p.m to 1l.00 p.mLicence (Off

Licence) Wines and

Spirits Retailers

(Rural and Sub-

Urban)

4. Hotel Alcoholic

Beverage Lioence

5. Club Alcoholic

Beverage Licence

(a) Members Club

Amembers club

licence may only

be held by a club

that is a non-

profit association

incorporated under

the Society's Act.

(b) Proprietary

Club (Including

Night Club)

(b) Proprietary

Club (Including

Night Club)

6. Theatre

Alcoholic Boverage

Licenco.

Authorized to sell alcoholic beverage on any day oftheweek to a lodger - for his own consumption and hisguest's consumption on the premises, at any hour.

Authorized to sell alcoholic beverage to members onany day ofthe week at any hour

Authorized to sell alcoholic beverage any day of theweek during the hours of 7.00 p.m. to 3.00 a.m.

Authorized to sell alcoholic beverage during the hoursof 5.00 p.m. to 11.00. p.m.

58 The Bomet CountyAlcoholic Beverage Contrul and ManagementAct, 2014

10. Temporary or

Occasional license

Authorised to sell alcoholic beverage on the dayand during the hours stipulated in the license by theSub-county Committee for the puposes of specificoccasions, ceremonies or events as indicated in theapplication.

SECOND SCHEDULE (s.22)

TYPES OFLICENCES

The following licences may be granted-

1. Manufacturer's Licence -

Subject to the conditions specified in the licence, aManufacturer's licence authorizes the holder to-

(a) manufacture and store the manufacturedalcoholic beverage in his depot;

(b) sell the product of his manufacturingplant by wholesale in accordance withthe conditions that are for the time being.applicable to a holder of a wholesalelicence or by delivery from depotthroughout Kenya in accordance with theAlcoholic Drinks Control Act, 2010; and

(c) bottle the alcoholic beverage subject tosuch conditions as may be prescribed.

For the purposes of this paragraph, "depot" meanspremises of whatever description which are occupiedby a Manufacturer for of his trade.

The Bomet CountyAlcoholic Beverage Control andManagementAct, 2014

2. Wholesale LicenceA wholesale licence authorizes the licensee to sell analcoholic beverage at the premises specified in thelicence, subject to such conditions as may be prescribed.

3. Retail LicenceA retail licence. authorizes the licensee to sell analcoholic beverage on the premises, at the hours andsubject to such other conditions as are specified in thelicence.

THIRD SCHEDULE (s. 10)

EXEMPTIONS(To be providedfor by the Executre Committee member in accordance

with Section 10(4) as when the need arises)

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Documents

SUPPLEMENT - Kenya Law Reports€¦ · The Bomet County Alcoholic Beverage Control and Manogement Act, 2014 I THE BOMET COUNTYALCOHOLIC BEVERAGE CONTROL AND MANAGEMENT A CT, 2OI4